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LISA HARLOW v. THOMAS STICKELS

(AC 35455)

Robinson, Sheldon and Bishop, Js.*

Argued December 6, 2013—officially released June 24, 2014

(Appeal from Superior Court, judicial district of New

Britain, Pinkus, J.)

Lisa Harlow, self-represented, the appellant

(plaintiff).

Donald R. Holtman, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, Lisa Harlow, appeals

from the trial court’s judgment denying her motion to

compel, motion for contempt, and motion for sanctions,

and granting, in part, the postdissolution motion for

modification filed by the defendant, Thomas Stickles.

On appeal, the plaintiff claims that the court erred by

(1) failing to allow the plaintiff to present evidence on

her motion for contempt, motion to compel, and motion

for sanctions, and (2) finding a substantial change in

circumstances that supported a modification of the

financial orders.1 We affirm the court’s judgment as to

the plaintiff’s motion to compel, motion for contempt

and motion for sanctions, and reverse in part the defendant’s motion for modification.

The following facts and procedural history are relevant to our resolution of this appeal. In March, 2011,

the plaintiff brought an action seeking dissolution of

the parties’ marriage due to an irretrievable breakdown

of the marital relationship. After five days of trial, the

court, Pinkus, J., issued a memorandum of decision

on April 17, 2012, in which itrendered judgment dissolving the parties’ marriage and ordering, inter alia, the

defendant to pay $850 per week as alimony to the plaintiff for a period of ten years. Additionally, the court

ordered the defendant to pay $440 per week as child

support and maintain at least a $1 million life insurance

policy naming the plaintiff as the irrevocable beneficiary for as long as he has an obligation to pay alimony

or child support. Finally, the court ordered that the

plaintiff would be entitled to earn $15,000 without the

court considering it a substantial change in circumstances.

The following month, on May 30, 2012, the defendant

filed a motion for modification (first motion for modification) requesting a change in the financial orders. He

alleged that a substantial change in circumstances had

occurred because he had become unemployed. After a

hearing on September 10, 2012, the court, Pinkus, J.,

found that the defendant had caused the termination

of his employment and denied his motion for modification.

On November 20, 2012, the plaintiff filed a motion to

compel and a motion for contempt, arguing, inter alia,

that the defendant had failed to meet his financial obligations pursuant to the dissolution judgment. The court

scheduled these motions for a hearing on January 14,

2013. Prior to the hearing on the plaintiff’s motions,

however, on January 7, 2013, the defendant filed a

motion for modification (second motion for modification) seeking, inter alia, a decrease in the defendant’s

alimony and child support obligations and a reduction

in his required life insurance coverage.2

In his second

motion for modification, the defendant argued that
there was now a substantial change in circumstances

because he recently had obtained employment and was

making less money than he had been at the time of the

dissolution when the court entered the original orders.

The plaintifffiled an objection to the defendant’s second

motion for modification, claiming, inter alia, that, like

his unemployment, the decrease in the defendant’s salary was due to the defendant’s culpable conduct.

The court heard arguments on the second motion

for modification on January 14, 2013, when the parties

appeared in court for the plaintiff’s motion to compel

and motion for contempt, and, on January 15, 2013, the

court ordered, inter alia, the defendant to pay child

support in the amount of $382 per week, alimony in

the amount of $525 per week, and that the defendant

would be entitled to reduce his life insurance policy to

$750,000 (financial orders). The plaintiff filed a motion

to reargue that the court subsequently denied. This

appeal followed.

Following oral argument before this court, this court

sua sponte ordered the trial court to articulate the factual and legal bases for its order of January 15, 2013,

granting in partthe defendant’s second motion for modification. This court ordered the trial court to particularly address the basis for the requisite finding of a

substantial change in circumstances. The court articulated that it found that at the time of the divorce judgment, ‘‘the defendant was earning $145,000 per year

plus a bonus, which was based upon performance and

not guaranteed. At the hearing on January 14, 2013, the

plaintiff’s uncontested financial affidavit indicated that

he was earning $120,000 per year. This $25,000 reduction in pay was the basis for the finding of a substantial

change in circumstances.’’

‘‘The standard of review in family matters is well

settled. An appellate court will not disturb a trial court’s

orders in domestic relations cases unless the court has

abused its discretion or it is found that it could not

reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has

abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor

of the correctness of its action. . . . Appellate review

of a trial court’s findings of fact is governed by the

clearly erroneous standard of review. The trial court’s

findings are binding upon this court unless they are

clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is

clearly erroneous when there is no evidence in the

record to support it . . . or when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction

that a mistake has been committed.’’(Internal quotation

marks omitted.) Weinstein v. Weinstein, 104 Conn.

App. 482, 487–88, 934 A.2d 306 (2007), cert. denied, 285
Conn. 911, 943 A.2d 472 (2008).

I

The plaintiff claims that the court erred by failing

to allow her to present evidence on her motion for

contempt, motion to compel, and motion for sanctions.

Her claim is unavailing.

The following additional facts are necessary for our

review of the plaintiff’s claim. On January 10, 2013,

priorto the January, 2013 hearing and subsequent to the

defendant’s filing of his second motion for modification,

the plaintiff filed a motion for sanctions. At the January

hearing, the court decided to hear all of the parties’

motions at the same time.

The court heard argument and evidence on the defendant’s motion for modification first, and then allowed

the plaintiff to present her motion for contempt, motion

to compel and motion for sanctions. Although the plaintiff argues that the court did not allow her to present

evidence on her motions, she does not state what evidence she wanted or attempted to present, nor does

she indicate any instances where she offered evidence

and the court denied her the opportunity to present it.

Additionally, the record reveals only two instances in

which the plaintiff moved to present evidence to the

court. The first time the plaintiff offered evidence, she

offered a letter from her previous employer allegedly

stating why she was no longer employed. The defendant’s attorney objected based on hearsay, and the

court sustained the objection and marked the letter

for identification. The plaintiff eventually withdrew this

exhibit. The plaintiff later offered her pay stubs as evidence. The defendant’s attorney made no objection and

they were entered as full exhibits.

An appellant bears the burden to show that there

was errorfrom which she appeals. See Ciucias v. Valley

Cab Co.,Inc., 3 Conn. App. 468, 470, 489 A.2d 411 (1985).

‘‘It is also the responsibility of an appellant to secure

an adequate record for our review.’’ Mihalyak v. Mihalyak, 11 Conn. App. 610, 620, 529 A.2d 213 (1987). The

plaintiff has failed to identify other specific instances

where the court allegedly rejected any evidence presented by her or denied her the opportunity to be heard

on her motions. In fact, the record reveals that the court

repeatedly asked the plaintiff what she wanted it to do

because it wanted to address her concerns.3 On the

basis of the record before us, we determine that the

plaintiff had ample opportunity to have her motions

heard and present supporting evidence for the court to

consider, and that the plaintiff has failed to meet her

burden of showing that the court abused its discretion.

Accordingly, her claim fails.

II

The plaintiff also claims that the court erred in granting the defendant’s second motion for modification
because it erroneously found a substantial change in

circumstances that warranted a modification of the

financial orders. The plaintiff argues that the court’s

finding was erroneous because it failed to include the

defendant’s auto allowance in its calculation of the

defendant’s income. We agree.

At the January, 2013 hearing, the defendant filed a

financial statement averring that his gross weekly

income was $2307.69. Under section twelve, which is

labeled ‘‘other,’’ the defendant indicated that he

received $133.85 per week from his employer‘‘as partial

reimbursement for expenses incurred.’’ He did not,

however, factor the additional $133.85 into his total

weekly gross or net income.

Additionally, appended to his financial affidavit was

the defendant’s pay stub. Under the section marked,

‘‘earnings,’’ it listed an auto allowance in the biweekly

amount of $290.4 The court originally made no specific

findings as to the defendant’s income; however, after

this court ordered the trial court to articulate the factual

and legal bases for its judgment on the defendant’s

motion for modification, the trial court articulated that

it found that the defendant was earning $120,000 per

year. The plaintiff argues that this finding is erroneous

because the court failed to include the auto allowance

listed on the defendant’s paystub.

Modification of alimony and child support is governed by General Statutes § 46b-86 (a), which provides

in relevant part: ‘‘Unless and to the extent that the

decree precludes modification . . . an order for alimony or support . . . may, at any time thereafter, be

. . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party.

. . .’’ General Statutes § 46b-86 (a); see Schade v.

Schade, 110 Conn. App. 57, 62, 954 A.2d 846 (2008),

cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008);

Weinstein v. Weinstein, supra, 104 Conn. App. 491.

‘‘We previously have explained the specific method

by which a trial court should proceed with a motion

brought pursuant to § 46b-86 (a). When presented with

a motion for modification, a court must first determine

whether there has been a substantial change in the

financial circumstances of one or both of the parties.

. . . Second, if the court finds a substantial change in

circumstances, it may properly consider the motion

and, on the basis of the [General Statutes] § 46b-82

criteria, make an order for modification. . . . The

court has the authority to issue a modification only if

it conforms the order to the distinct and definite

changes in the circumstances of the parties. . . . Simply put, before the court may modify an alimony award

[or child support order] pursuant to § 46b-86, it must

make a threshold finding of a substantial change in

circumstances with respect to one of the parties. . . .
‘‘The party seeking the modification has the burden

of proving a substantial change in circumstances. . . .

To obtain a modification, the moving party must demonstrate that circumstances have changed since the last

court order such that it would be unjust or inequitable

to hold either party to it. Because the establishment of

changed circumstances is a condition precedent to a

party’s relief, it is pertinent for the trial court to inquire

as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry,

the trial court’s discretion is essential.’’ (Internal quotation marks omitted.) O’Donnell v. Bozzuti, 148 Conn.

App. 80, 87, 84 A.3d 479 (2014).

Section 46b-215a-1 (11) (A) (vi) of the Child Support

and Arrearage Guidelines (2005) defines gross income

for the purpose of calculating child support orders as

including ‘‘employment perquisites and in-kind compensation (any basic maintenance or special need such as

food, shelter or transportation provided on a recurrent

basis in lieu of or in addition to salary or wages).’’

(Emphasis added.) Upon our review of the record, we

conclude that the court considered only the defendant’s

base salary in its finding that he made $120,000 per

year, as that is the total ofthe defendant’s gross earnings

of $2307.69 per week for fifty-two weeks. The court

had before it evidence that the defendant received a

biweekly auto allowance of $290, and this evidence was

underscored by the defendant’s affirmation stated in his

financial affidavit. Further, the court made no finding as

to why it had failed to include the defendant’s auto

allowance in its calculation of his income. Therefore,

we must necessarily conclude that the court improperly

applied the applicable law and that it was unreasonable

for the court to find as it did. See Simms v. Chaisson,

277 Conn. 319, 325, 890 A.2d 548 (2006) (our review is

limited to ‘‘whether the trial court correctly applied the

law and reasonably could have reached the conclusion

that it did’’ [internal quotation marks omitted]). Because

this erroneous income determination was the court’s

basis for finding a substantial change in circumstances,

and that amount is the basis for all of the court’s new

financial orders, the court’s judgment modifying the

financial orders must be reversed. Accordingly, we conclude that the court abused its discretion.

The judgment is reversed only as to the modification

of the financial orders and the case is remanded with

direction to deny the motion for modification with

respect to the financial orders; the judgment is affirmed

in all other respects.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The plaintiff also claims that the court erred by: (1) failing to dismiss

the defendant’s motion for modification pursuant to the doctrine of res

judicata; (2) proceeding with the defendant’s motion for modification when

the plaintiff did not have sufficient time to obtain discovery from the defendant; (3) imputing the plaintiff with an unsubstantiated earning capacity;

and (4) finding a change in circumstances when the original dissolution
judgment allowed her to make $15,000 in income without triggering the

modification provision. All of these claims pertain to the court’s decision

regarding the defendant’s motion for modification. Because we conclude

that the court erred by not including the defendant’s auto allowance in its

calculation of the defendant’s income, and, accordingly, reverse the court’s

judgment on that ground, we need not reach the merits these claims.

2 The defendant also filed a motion to compel on January 7, 2013, when

he filed his second motion for modification. The court’s disposition on this

motion, however, was not challenged by the plaintiff in this appeal.

3 At one point, the court stated: ‘‘Tell me what you want be—because I

want—I don’t want you to leave here feeling as though you haven’t been

heard.’’

4 The defendant’s attorney represented at the beginning of the hearing

that the defendant was paid every two weeks.